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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 28 / 39

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WISCONSIN LAW REVIEW

on an investor’s ability to make informed decisions. In addition, the patent lends credibility to the unsupported notion that energy can be had for free by simply collecting it from empty space.

C. The Cold Fusion Patents

Cold fusion is a technology that briefly rose to international prominence in 1989 when two scientists, Professors Stanley Pons and Martin Fleischmann of the University of Utah, announced the possibility of generating energy through fusion using only a simple,

table-top apparatus.227

Most scientists were (and still are) of the opinion

that fusion could only be produced at enormous temperatures and pressures, requiring large, expensive facilities and a great deal of additional research.228 Since fusion produces a large amount of energy from a very small amount of fuel, the possibility of producing fusion cheaply and at low temperatures promised a revolution in energy production.229 Subsequent failure to reliably reproduce Pons and Fleischmann’s results has left the scientific community generally skeptical of cold fusion.230 Nevertheless, a number of scientists continue to do research in this field, and some have attempted to patent their work.231 No reliable energy source has resulted from these efforts.232

This section examines two cases arising from attempts to patent cold fusion technology, In re Swartz233 and In re Dash.234 In both cases, the Federal Circuit affirmed the patent examiner’s determination that the cold fusion devices were unpatentable due to inoperability.235 At first glance, these cases appear to represent a triumph of the U.S. patent system in weeding out inoperable inventions. However, a finding of inoperability with regard to cold fusion may be the result of special circumstances. For one thing, the scientific community has come to a general consensus that cold fusion does not work,236 producing a vast

Lee Dye & Thomas H. Maugh II, Excitement and Skepticism: Fusion C l a i m S p a r 227. k s R u s h t o D u p l i c a t e E x p e r i m e n t , L . A . T I M E S , M a r . 2 5 , 1 9 8 9 , a t A 1 See, e.g., Toni Feder, Cold Fusion Gets Chilly Encore, PHYSICS TODAY, . 228.

Jan. 2005, at 31, 31 (“Claims of cold fusion are no more convincing today than they were fifteen years ago.”).

    • 229.

      Dye & Maugh, supra note 228.

    • 230.

      See Feder, supra note 229, at 31.

    • 231.

      See, e.g., In re Swartz, 232 F.3d 862 (Fed. Cir. 2000); In re Dash, 118

  • F.

    App’x 488 (Fed. Cir. 2004).

232. 233. 234. 235. 236.

See Feder, supra note 229, at 31. 232 F.3d 862. 118 F. App’x 488. In re Swartz, 232 F.3d at 864; In re Dash, 118 F. App’x at 492. Feder, supra note 229, at 31.

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